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The Kansas Board of Regents  Tuesday that it will create a “workgroup” to review the new  on “improper use of social media” by faculty that has earned a   of criticism from academic freedom advocates since it was adopted two weeks ago.

FIRE, the ACLU of Kansas, and the National Coalition Against Censorship sent a joint letter (PDF) to the Board on December 20, urging a repeal of the policy. As we noted in our letter, the policy puts protected faculty speech at risk for censorship or punishment because it is both overbroad and vague.

The Board’s new statement says:

Because of concerns expressed regarding the Board of Regents’ policy regarding the improper use of social media, Board Chair Fred Logan has asked Andy Tompkins, President and CEO of the Board, to work with the University Presidents and Chancellor to form a workgroup of representatives from each state university campus to review the policy.

Regent Logan requests that any recommendations for amendments to the policy from the workgroup be presented to the Board’s Governance Committee by April 2014.

According to the , University of Kansas (KU) Chancellor Bernadette Gray-Little and Provost Jeff Vitter have also called for revisions to the policy. Further, in a message to faculty and students on December 23, Kansas State University President Kirk Schulz  his intentions to work with state university presidents and the Board to resolve the disputes surrounding the policy and to preserve academic freedom.

But professors remain concerned. KU professor Jerry Mikkelson, for example,  the Journal-World: “Getting a correct outcome of this thing doesn’t involve chipping away at the edges of it. There are fundamental things wrong with it.”

Student Press Law Center Executive Director Frank LoMonte details the problems with the policy today in. Although the Board  that the policy “utilized language from United States Supreme Court cases” in order to protect faculty rights, the policy reflects a worrying trend in some jurisdictions to broadly apply the Supreme Court’s narrow ruling in Garcetti v. Ceballos (2006). In that case, the Court held that government employers may punish employees for speech made “pursuant to ... employment duties,” but specifically noted that the holding did not necessarily apply in cases involving university faculty’s “scholarship or teaching” because of the need to protect academic freedom.

As LoMonte explains, the first problem with the policy is in broadening Garcetti’s holding:

Properly understood, Garcetti applies only where the speech itself is a work assignment – not where the speech is about work responsibilities.

[...]

Few positions at a university require creating social media as part of official job duties. For the few that do, the Kansas policy is unnecessary. If you are the employee in charge of managing the university’s Facebook page, doing that job badly has always been grounds for removal.

Enactment of a new regulation suggests something more – a desire to extend authority over social media activity that is not a part of the employee’s job. The portentous descriptive – that the college may freely regulate speech “in furtherance of” official duties – is especially ominous for employees (read, faculty) for whom speaking and publishing is an expected credential-builder.

The second problem, according to LoMonte, is applying the holding to university faculty despite the Court’s explicit reservation of the issue of “whether Garcetti can legitimately be applied to teaching faculty without running afoul of academic freedom”:

Two of the 12 federal geographic circuits have recently said no. In September, the Ninth Circuit U.S. Court of Appeals ruled in Demers v. Austin, involving disciplinary action against a Washington State University professor, that “Garcetti does not — indeed, consistent with the First Amendment, cannot — apply to teaching and academic writing.” The ruling echoes a decision by the U.S. Court of Appeals for the Fourth Circuit, Adams v. Trustees of the University of North Carolina at Wilmington.

And as LoMonte notes, the fact that the policy was enacted in response to KU professor David Guth’sclearly protected post on Twitter in September sends the chilling message to faculty members that even speech on matters of public concern expressed on personal social media accounts on their own time can put them at risk for punishment.

In explaining why he did not oppose the policy, Fort Hays State University President Ed Hammond : “Rest assured your university has no interest in regulating private speech and opinion, nor has it shown any willingness or indication to do so previously.” According to , “[h]e said that the university’s response will, as it always has been, be governed by the legal interpretation of the Supreme Court’s balancing test between freedom of speech and improper speech.” Well, even if that promise has proven to be true at Fort Hays under Hammond so far, there is of course no guarantee that it will be true in the future. And of course, it is demonstrably false at KU. Further, administrators at colleges and universities across the country routinely break explicit promises to protect freedom of speech; why should we trust them to protect this right when they are governed by policies that explicitly authorize punishment for protected speech?

The policy must be rewritten to clearly and fully protect faculty speech rights. Without substantial changes, faculty may be punished for opinions shared as private citizens, and they are likely to choose to self-censor rather than risk Professor Guth’s fate.

Check back to The Torch for updates on the policy review.

Image: Aerial view of KU campus -